[2025] UGCommC 151

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) ORIGINATING SUMMONS NO. 40 OF 2024**

#### 10 **VERSUS**

# **TWESIGA HILLARY :::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

**PLATINUM CREDIT (U) LIMITED ::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### **JUDGMENT**

#### 15 Introduction

This suit was brought by way of Originating Summons under **Order 37 rules 4 and 8 of the Civil Procedure Rules, SI 71-1**, seeking:

- 1. An order to foreclose and sell the mortgaged property. - 2. Costs of the suit. - 20

#### Brief facts

The brief facts of this suit are contained in the affidavit in support deponed by **Ms. Kansiime Doreen**, the Plaintiff's Portfolio Manager-Logbook Financing, and is summarized below:

25 That on 28th May, 2024, the Plaintiff granted a capitalized loan facility of UGX 52,191,500/= (Uganda Shillings Fifty-Two Million One Hundred Ninety-One Thousand Five Hundred Only) to the Defendant. That the loan facility was to be repaid in 18 monthly instalments of UGX 5,062,188/= with interest at the rate of 4% per month and was secured by the 30 Defendant's motor vehicle **Reg. No. UBL 537Y**.

- 5 That the Defendant has defaulted on the agreed instalment payments and at the time of filing the suit the outstanding sum was UGX 63,743,226/= (Uganda Shillings Sixty-Three Million Seven Hundred Forty-Three Thousand Two Hundred Twenty-Six Only). That despite several demands, the Defendant has refused or neglected to pay the outstanding sum. That - 10 the facts, issues and questions to be determined are brief and do not require a full trial, hence this suit.

The Defendant filed an affidavit in reply contending that from the month of June, 2024 up to February, 2025, he was making monthly instalments of UGX 5,062,188/= as agreed in the loan agreement and that therefore,

15 the claims against him were brought in bad faith. Further, that the facts and subject matter of the claim are contentious and thus need oral evidence which requires a full trial.

### Representation

The Plaintiff was represented by **M/s Matrix Advocates** while the 20 Defendant was represented by **M/s Nabimanya & Co. Advocates**.

The parties were directed to file their written submissions however none of them complied with Court's directives.

#### Issues for Determination

- 1. Whether the Plaintiff as a legal mortgagee of motor vehicle **Reg. No.** - 25 **UBL 537Y** Chassis No. **MR0KB8CD601201283** Engine No. **2GD4156876** (hereinafter referred to as "the mortgaged property") by virtue of a caveat registered on 30th May, 2024, is entitled to foreclose and sell the mortgaged property belonging to the Defendant as a registered proprietor, to recover all the amounts due in respect 30 of the principal debt, interest and other charges incidental thereto?

- 5 2. Whether the Plaintiff is entitled to sell the said mortgaged property, either by private treaty or public auction to recover the entire sum due and owing by the Defendant, costs and expenses related thereto? - 3. Whether the Defendant and/or his agents and any persons claiming from him the said mortgaged property is mandated to handover 10 possession of the mortgaged property to the Plaintiff/a purchaser deriving interest from the Plaintiff or for the Plaintiff to manage, lease, charter, operate or otherwise utilize the mortgaged property to recover the outstanding sums?

#### 15 Analysis and Determination

As provided for under **Section 101 of the Evidence Act, Cap. 8** whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. (See also **Sections 102, 103 and 104 of the** 20 **Evidence Act** and the case of *Sebuliba Busuulwa Vs Co-operative Bank Ltd [1982] HCB 129*).

## **Order 37 rule 4 of the Civil Procedure Rules** stipulates that:

*"Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable* 25 *charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before a judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to* 30 *say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance or delivery of possession by the mortgagee."*

- 5 Originating Summons is one of the modes of commencing a civil suit wherein; the dispute in question concerns a straight matter of law, there is an unlikely substantial dispute of fact in the matter, affidavits are used as the pleadings for the case and oral evidence is not required since the matter can be resolved by relying on the affidavit evidence adduced by the - 10 parties. (See: *Guaranty Trust Bank (U) Ltd Vs Dokwals (U) Ltd & Another Originating Summons No. 01 of 2021* and *Jas Ventures International Ltd Vs Okello Carlos Orach Originating Summons No. 08 of 2023*). It is now trite that Originating Summons are intended to dispose of simple and non-contentious matters in a speedy manner. (See: - 15 **Order 37 rule 11 of the Civil Procedure Rules** and the case of *Nesta Petroleum (U) Ltd Vs Silcon Oil (U) Ltd & Another Originating Summons No. 03 of 2022*).

In the instant case, the Plaintiff seeks an order to foreclose and sell the Defendant's motor vehicle **Reg. No. UBL 537Y** Chassis No. 20 **MR0KB8CD601201283** Engine No. **2GD4156876** on grounds that the Defendant has refused or neglected to repay the loan facility and the accrued interest which has all accumulated to UGX 63,743,226/=. In evidence, the Plaintiff adduced annexures; **"PC 1"** the loan application form dated 27th May, 2024, **"PC 2"** the loan offer letter dated 28th May, 25 2024 and **"PC 3"** the registration book in respect of motor vehicle **Reg. No. UBL 537Y**. According to annexures **"PC 1"** and **"PC 2"** attached to the affidavit in support, the Plaintiff advanced a capitalized loan facility of UGX 52,191,500/= to the Defendant. According to **Section D** of annexure **"PC 3"**, the Defendant's motor vehicle **Reg. No. UBL 537Y** was used as 30 collateral for the said loan.

- 5 According to **paragraph 5** of the affidavit in reply, the Defendant contended that from the month of June, 2024 to February, 2025, he made payments in respect of the loan facility. In evidence, the Defendant adduced annexure **"A"**, a bank statement issued by Equity Bank Uganda Limited in respect of the Defendant's account from 1st July, 2024 to 21st - 10 February, 2025. According to annexure **"A"** attached to the affidavit in reply, on 5/8/2024, 12/08/2024, 14/08/2024, 17/08/2024, 19/08/2024, 23/08/2024, 27/08/2024 and 02/12/2024; UGX 4,000,000/=, UGX 3,000,000/=, UGX 2,000,000/=, UGX 1,000,000/=, UGX 500,000/=, UGX 500,000/=, UGX 500,000/= and UGX 1,000,000/= 15 was deducted from the Defendant's account respectively under the - descriptions, "APP/PLATINUM CREDIT (U) LIMITED/CAR LOAN" and "APP/PLATINUM CREDIT (U) LIMITED/CAR LOAN PAYMENT". The Plaintiff did not file an affidavit in rejoinder to rebut this averment. - The Defendant also averred that the Plaintiff has never demanded for the 20 claimed sum. Further, under **paragraph 6** of the affidavit in support, the Plaintiff contended that its Head of Collections issued a demand to the Defendant to clear his debt as per annexures **"PC 4"** and **"PC 5"**, the demand notices dated 2nd September, 2024 and 6th November, 2024. I have perused the Court record however, annexures **"PC 4"** and **"PC 5"** were 25 not attached to the affidavit in support of the Originating Summons.

I have also observed that the Plaintiff has not adduced any evidence to prove the Defendant's indebtedness such as the demand notices or the payoff quotation as alleged under **paragraph 7** of the affidavit in support or any other evidence to rebut the Defendant's assertion that he made 30 payments to clear the loan as per annexure **"A"** attached to the affidavit in reply.

5 All the above raise fundamental contestations over the facts being relied upon by the Plaintiff. As was held in the case of *Jas Ventures International Ltd Vs Okello Carlos Orach (supra)*, where there are fundamental contestations over facts, it is best to decline to answer the questions in the summons and insist that those matters are tried in a suit

10 commenced by a plaint.

In the premises, in my view, further evidence is required to ascertain the amount actually due and owing to the Plaintiff, if any, in light of the undisputed payments reflected under annexure **"A"** attached to the affidavit in reply. Therefore, I am not satisfied that this is a proper 15 procedure for determination of the issues raised in the instant Originating Summons given the factual variations and in the absence of proof of indebtedness. Accordingly, there is need to investigate the variations and contentions by both parties by considering further evidence before a determination on the issues raised is made by Court.

- 20 In the premises, I hereby make the following orders: - 1. This Originating Summons is hereby dismissed. The Plaintiff may, if it so desires, commence an action by plaint, subject to the laws of limitation. - 2. Costs of this suit are awarded to the Defendant. - 25

I so order.

Dated, signed and delivered electronically via ECCMIS this **15th** day of **May**, **2025.**

Patience T. E. Rubagumya **JUDGE** 15/05/2025 35 6:50am